Can EEA family members be guilty of obtaining leave by deception?

I wasn’t his lawyer in the Crown Court (where he had pleaded guilty) but took the case on to go to the Court of Appeal – you can read above some of the arguments that there were.

One of the conclusion was this – where someone is applying for a Residence Permit as a family member of an EEA national, they are not applying for ‘leave to enter’ the UK. The significance of this is that my client in that case was accused of trying to get a Residence Permit by deception. In that case it was as a family member of someone pretending to be an EEA national, but this could equally apply to someone who is accused of entering a sham marriage with an EEA Citizen.

He was charged with an offence contrary to s24A(1)(a) Immigration Act 1971 – Obtaining Leave to Enter or Remain by Deception and he pleaded guilty. But could he be, in law, guilty of this offence.

The Court of Appeal agreed that the framework of immigration law relating to ‘leave to enter (or remain)’ is very different to the system of immigration control for those who are either EEA nationals or family members of EAA nationals.

What about the fact that he pleaded guilty? It doesn’t matter. Even if the offence could be indicted under s24A(1)(b) (and if the CPS tried to, there would have to be more legal argument) the charge “cannot possibly be regarded as “a mere drafting or clerical error” or “a purely technical defect”. The counts were “fundamentally flawed”“.

And so, even though there was a guilty plea, the appeal succeeded and those convictions quashed.

I assumed that this was a one off – a piece of bad drafting that just arose in this case. But recently I was talking to a colleague who was off to do a trial where someone accused of a sham marriage where this was the charge. It seems that there may be plenty of other people in the same position.

So, if you have been charged with this and have a trial coming up, you need to be aware of this case. If you’ve been convicted of a s24A offence when the allegation was you were trying to get a right under EEA law, you want to look at whether you can appeal the conviction, even if you pleaded guilty.